25 TAC §419.301
The Texas Department of Mental Health and Mental Retardation
(TDMHMR) adopts new §419.301 of new Chapter 419, Subchapter G, concerning
Medicaid fair hearings, without changes to the proposed text as published
in the April 16, 1999, issue of the
Texas Register
(24 TexReg 3018).
The new section adopts by reference rules of the Health and Human Services
Commission (HHSC) contained in 1 TAC §§357.1, 357.3, 357.5, 357.7,
357.9, 357.11, 357.13, 357.15, 357.17, 357.19, 357.21, 357.23, 357.25, 357.27,
and 357.29 of Chapter 357 (relating to Medicaid Fair Hearings), which were
adopted in the March 26, 1999, issue of the
Texas
Register
. The new section also defines the term "authorized representative."
The adoption implements fair hearing procedures for Medicaid recipients
that are uniform for all operating agencies, as required by §531.024(6)
of the Government Code. The fair hearing procedures are consistent with the
federal regulations concerning fair hearings set forth in 42 CFR §431.200
et seq. The uniformity of rules among the operating agencies allows the public
to more easily become familiar with fair hearing procedures.
Comments were received from a parent of a person with mental retardation;
Garland; the Parent Association for the Retarded of Texas (PART), Austin;
and San Antonio State Hospital, San Antonio.
Two commenters questioned the membership of a workgroup referenced in the
adoption preamble of HHSC's rules that TDMHMR adopted by reference. In the
preamble, HHSC responded to a commenter's concerns about stakeholder involvement
by stating HHSC conducted "a workgroup in which advocates who represent people
requesting fair hearings participated." The commenters asked why PART was
not included in the workgroup. The commenters also objected to the use of
the term "stakeholder" to "put private providers and others on the same level
as consumers and their legally authorized representatives." The department
responds that HHSC is the appropriate agency to address these inquiries and
to that end has forwarded a copy of the comments to HHSC.
Regarding 1 TAC §357.1(b)(2), two commenters requested that the term
"authorized representative" be changed to "legally authorized representative."
The commenters also requested that the phrase "as defined by the operating
agency" be changed to "as defined by law." The department responds that neither
the term "authorized representative" nor "legally authorized representative"
is defined by law. HHSC's rules must accommodate every state agency that operates
a part of the Texas Medicaid program. HHSC directed each operating agency
to define the term "authorized representative" instead of "legally authorized
representative" to allow an agency to include persons who have been designated
as a representative other than through a court proceeding. In 25 TAC §419.301(b),
TDMHMR defines "authorized representative" as "the parent, guardian, or managing
conservator of an individual who is a minor or the guardian of the person
of an individual who is an adult."
Regarding 1 TAC §357.7(b)(1), two commenters asked why the operating
agency could terminate or reduce services if the sole issue of the hearing
is one of state or federal law or policy. The department responds that such
action is permitted by 42 CFR §431.230(a).
Regarding 1 TAC §357.7(b)(2), the two commenters stated that notifying
the individual just five days before services are terminated or reduced is
not enough time to make necessary arrangements. The department responds that
the five-day notification is adequate and in compliance with 42 CFR §431.230(a).
Under 1 TAC §357.7(b)(1), the individual will be informed at the hearing
that the sole issue is one of state or federal law or policy and, therefore,
is aware that services may be terminated or reduced prior to the hearing official's
rendering of the written decision. Also, before the hearing, the individual
is aware that his/her services may be terminated or reduced because he/she
was initially notified of such by the operating agency at least 10 days before
the proposed termination or reduction date (1 TAC §357.5(a)(2)). Therefore,
an individual who receives the five-day notice under 1 TAC §357.7(b)(2)
has had adequate time to make necessary arrangements for a termination or
reduction of services.
Regarding 1 TAC §357.9, two commenters expressed concern that the
language of this section "will not provide for a 'real' impartial hearing
official," apparently because it permits the agency to designate one of its
staff members as the hearing official. The commenters suggested, for "a 'real'
arm's length [impartiality]," an operating agency should be required to designate
a staff member of another operating agency to be the hearing official. The
department responds that the rule is consistent with federal regulations (42
CFR §431.240(3)), which recognizes that an agency staff member can be
impartial in conducting fair hearings for that agency.
One commenter stated that he did not have any comments.
This section is adopted under the Texas Health and Safety Code,
§532.015(a), which provides the Texas Board of Mental Health and Mental
Retardation with broad rulemaking authority; the Texas Government Code, §531.021(a),
and the Texas Human Resources Code, §32.021(a), which provide HHSC with
the authority to administer the federal medical assistance (Medicaid) program
in Texas; Acts 1995, 74th Legislature, Chapter 6, §1, (Senate Bill 509),
which clarifies the authority of HHSC to delegate the operation of all or
part of a Medicaid program to a health and human services agency; the Human
Resources Code, §32.021(c), which provides an agency operating part of
the Medicaid program with the authority to adopt necessary rules for the proper
and efficient operation of the program; and the Texas Government Code, §531.024,
which requires the promulgation of uniform fair hearings rules for all Medicaid-funded
services. HHSC has delegated to TDMHMR the authority to operate certain Medicaid
programs.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on June
28, 1999.
TRD-9903854
Charles Cooper
Chairman, Texas MHMR Board
Texas Department of Mental Health and Mental Retardation
Effective date: July 19, 1999
Proposal publication date: April 16, 1999
For further information, please call: (512) 206-4516